Returning to civilian employment after active duty
Are any of your employees veterans or currently serving in the U.S. armed forces? If so, it's important to be familiar with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This law protects service members who want to return to their civilian employment after completing active duty.
Service members must be reemployed without loss of seniority, status or compensation
Under USERRA, employers are required to offer a so-called escalator position — the job that a service member would have had without military absence. However, the law recognizes that sometimes this isn't possible, even after additional training and other reasonable efforts on an employer's part. In that case, service members may be reemployed in another position for which they qualify, as long as it most nearly matches the escalator position.
Keep in mind that the escalator position may be at a higher or lower level than the position previously held. For example, if the service member would have been promoted had he or she not taken leave, the person is entitled to a promotion upon reinstatement. On the other hand, the person could be placed in a lower level position based on reorganizations, layoffs or other economic factors.
Service members must meet eligibility criteria
To qualify for reemployment rights, service members must generally:
- Give their employer written or verbal notice before their military service
- Have five years or less of cumulative military service while employed by a single organization
- Return to work or apply for reemployment within the time limits specified by USERRA
- Leave the military with an honorable discharge
In some cases, USERRA allows for exceptions to these criteria. For example, call-ups during emergencies, reserve drills and annual training might not count against the five-year limit.
USERRA applies broadly
USERRA applies to virtually all civilian employers, regardless of size. This includes:
- Federal, state and local governments
- Private employers
- Nonprofit organizations
In addition, the law applies to both voluntary and involuntary military service — whether or not the country is at war.
Service members may file complaints
Complaints under USERRA are filed with the Veterans' Employment and Training Service (VETS) of the U.S. Department of Labor. Remedies available through VETS may include:
- Return to a job
- Back pay
- Restored benefits and vacation time
- Restored opportunities for promotion
- Corrected personnel files
- Retroactive seniority
- Pension plan adjustments
If VETS is unable to resolve a complaint, service members may ask for referral to the U.S. Department of Justice or — for federal employees — to the Office of Special Counsel. Service members may also bypass VETS and bring a civil action against an employer for USERRA violations.
Employers aren't allowed to retaliate against an employee for filing a USERRA complaint or for assisting with a USERRA investigation. If USERRA violations are considered willful, the court may double any amount due to a service member. However, punitive damages aren't allowed.
Take steps now to comply with USERRA
Federal law requires employers to notify employees of their rights under USERRA. You can meet this requirement by displaying a VETS notice in a spot where employee notices are customarily posted.
It's helpful to review your current hiring, promotion and retention policies for possible conflicts with USERRA. Also review your compensation plans, ensuring that they allow service members to maintain eligibility for participation in benefit programs upon return from military service.
Finally, when an employee meets USERRA criteria, plan ahead for possible retraining and job placement. Keep in mind that service members are entitled to be promptly reemployed, which means as soon as practical under the circumstances of the individual case. For instance, the time period before reinstatement would likely be shorter for a service member returning from weekend duty in the National Guard than for someone returning from several years on active duty.
This article draws on the expertise of Grace Davies, a Minneapolis-based attorney with special interest in product liability, medical malpractice and employment discrimination.